Judges weigh fate of 'dirty bomber'

Judges weigh fate of U.S. detainee3-member panel considers whether to overturn ruling that he should be charged or freed

TOM JACKMAN, Washington Post

Published 5:30 am, Wednesday, July 20, 2005

RICHMOND, VA. - A government attorney argued Tuesday that America is a battlefield and President Bush therefore has the authority to detain enemy combatants indefinitely in this country.

Paul Clement, acting solicitor general of the United States, made the comments as a three-judge panel from the 4th U.S. Circuit Court of Appeals here is considering whether to overturn a lower court ruling that Jose Padilla should be charged with a crime or released. In 2002, Padilla, a former Chicago gang member and Muslim convert, was taken into custody by the military and has been held without trial.

The government alleges that Padilla, an American citizen, trained with al-Qaida in Afghanistan and Pakistan, and arrived in this country in May 2002 with the intent to blow up apartment buildings.

The panel assigned to hear the arguments includes Judge Michael Luttig, of Alexandria, Va.; Judge Blane Michael, of Charleston, W.Va.; and Judge William Traxler, of Greenville, S.C.

The judges were most concerned with how to handle Padilla in light of the Supreme Court's ruling last year on Yaser Esam Hamdi. Also an American citizen, Hamdi was captured by the military with Taliban forces in Afghanistan and placed in a Navy brig in Norfolk. The Supreme Court ruled that his detention was lawful, but he was entitled to a hearing to challenge the allegations.

Moments after Clement began his oral argument, Luttig interrupted to say that "arguably, Judge (Sandra Day) O'Connor in 'Hamdi' limited that law to the battlefield detention, did she not?" Padilla was picked up at Chicago's O'Hare International Airport on a warrant from a federal court in New York, and only later turned over to the military.

Luttig repeatedly pressed Clement, even after Clement noted that Padilla's alleged intentions as a soldier of al-Qaida — to target civilians — constituted "unlawful combatancy" even if he were on a battlefield in uniform. But Michael said Padilla wasn't captured anywhere near a battlefield.

Michael then asked, "To call the United States a battlefield, wouldn't you have needed a specific authorization from Congress?"

Padilla has been held in South Carolina for three years. His lawyers say they believe that neither the Hamdi decision, nor a congressional authorization of military powers to the president in September 2001, negates an American's right to challenge the government's accusations at trial.